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Judging the Judges CROSS & LINDQUIST IN FINAL.DOC 5/5/2009 4:04:41 PM JUDGING THE JUDGES FRANK B. CROSS† STEFANIE LINDQUIST†† ABSTRACT The evaluation of judges, especially circuit court judges, has commanded increased attention, with the quantitative analyses of Stephen Choi and Mitu Gulati. However, the proper dimensions for the evaluation of judges remains much disputed. Critics have challenged Choi & Gulati’s scales for measuring judicial quality but have offered little that is positive that would improve measurement. The critics make philosophical challenges to whether the measures truly capture the qualities of judging we should desire, but they offer no measurement tools to improve on Choi and Gulati. We hope to advance the theoretical and empirical evaluation by incorporating different scales for evaluating judges. We consider Choi & Gulati’s data, plus the record of each judge’s opinions on review at the Supreme Court and other more subjective measures of judicial quality. We then employ a cluster analysis to differentiate among different types of judges on all these dimensions. This analysis does not provide a rating of the “best” judges, because the standards for “best” judging are contested. Some judges may be considered best, because their opinions receive more citations. However, these very judges may be considered less than best, because they render unnecessarily expansive decisions that yield more citations. Some argue for judges with minimalist decisionmaking characteristics that tend to result in fewer citations. Our cluster analysis simply categorizes circuit court judges into groups with like decisionmaking Copyright © 2009 by Frank B. Cross and Stefanie Lindquist. † Herbert D. Kelleher Centennial Professor of Business Law, McCombs School of Business, University of Texas at Austin; Professor of Law, University of Texas Law School; Professor of Government, University of Texas at Austin. †† Thomas W. Gregory Professor of Law, University of Texas Law School; Professor of Government, University of Texas at Austin. CROSS & LINDQUIST IN FINAL.DOC 5/5/2009 4:04:41 PM 1384 DUKE LAW JOURNAL [Vol. 58:1383 characteristics. This enables an analysis of which group, or type of judge, should be considered “best.” TABLE OF CONTENTS Introduction ...........................................................................................1384 I. Choi and Gulati’s Tournament and Other Evaluations...............1387 A. Choi and Gulati’s Methods and Results................................1387 B. Use of the Results for Supreme Court Appointments ........1388 1. Particularized Methodology Critiques...............................1388 2. Broader Usage Critiques.....................................................1393 C. Other Research Assessing Judges..........................................1400 II. Evidence from Supreme Court Review........................................1402 A. Significance of Supreme Court Review.................................1403 B. Data and Methods....................................................................1406 C. Results.......................................................................................1406 III. Judicial Types Compared and Contrasted..................................1414 A. Judicial Types ...........................................................................1415 1. Judicial Entrepreneurs ........................................................1419 2. Judicial Minimalists .............................................................1422 B. Cluster Analysis of Judges and Types ...................................1425 IV. Important Additional Research...................................................1429 Conclusion..............................................................................................1436 INTRODUCTION The rigorous comparative evaluation of federal judges has become a popular topic in academic research; the topic’s popularity can be traced in large part to a series of articles written by Professors Stephen Choi and Mitu Gulati evaluating federal circuit court of appeals judges as candidates for Supreme Court appointment.1 Their research has already generated a considerable amount of analytical research specific to their model, some of it critiquing their methods or conclusions.2 Yet these critiques often overlook some important 1. Stephen J. Choi & G. Mitu Gulati, Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance, 78 S. CAL. L. REV. 23 (2004) [hereinafter Choi & Gulati, Choosing the Next]; Stephen J. Choi & G. Mitu Gulati, Mr. Justice Posner? Unpacking the Statistics, 61 N.Y.U. ANN. SURV. AM. L. 19 (2005) [hereinafter Choi & Gulati, Mr. Justice Posner?]; Stephen Choi & Mitu Gulati, Essay, A Tournament of Judges?, 92 CAL. L. REV. 299 (2004) [hereinafter Choi & Gulati, A Tournament]. 2. See, e.g., Michael J. Gerhardt, Merit vs. Ideology, 26 CARDOZO L. REV. 353, 353–54 (2005); William P. Marshall, Be Careful What You Wish for: The Problems with Using Empirical Rankings to Select Supreme Court Justices, 78 S. CAL. L. REV. 119, 119–21 (2004); WERL, On CROSS & LINDQUIST IN FINAL.DOC 5/5/2009 4:04:41 PM 2009] JUDGING THE JUDGES 1385 issues, and they have generally failed to add any meaningful descriptive data to inform the debate commenced by Choi and Gulati. This Article strives to advance the analysis by reanalyzing the issues and adding new empirical information for the evaluation of judges. Like most of the other existing research, we focus on the federal circuit court judiciary. Professors Choi and Gulati chose to evaluate these judges because the federal appellate judiciary is the most likely source for Supreme Court appointments.3 In addition, the circuit court judiciary is probably the single most important level of the federal judiciary in light of its extensive caseload and policy making authority.4 Given the limited resources of Supreme Court review, the circuit courts “are largely left to themselves” to develop “legal rules in unsettled areas of law.”5 There is thus great value in understanding the relative quality of circuit court judges as these appointments, in the aggregate, are arguably more important for most federal court cases than any individual appointment to the U.S. Supreme Court. In Part I, we review the background research on judicial quality. The Choi and Gulati study is our benchmark as it investigates the quality of federal appeals court judges in great detail and has received considerable attention and assessment. In Part I we also review and evaluate several critiques of this study’s methodology and usage. The methodological disputes raised in these critiques are central to any evaluation of the worth of this or any other quantitative measures of judicial quality. The Choi and Gulati study is not the only quantitative evaluation of circuit court judges, and therefore we also review several other approaches that have been taken to this project. Tournaments for Appointing Great Justices to the U.S. Supreme Court, 78 S. CAL. L. REV. 157, 157–58 (2004); Lawrence B. Solum, A Tournament of Virtue 1–2 (U. San Diego Legal Studies, Research Paper No. 05-16, 2004), available at http://ssrn.com/abstract=588322. The Choi and Gulati tournament has spawned a symposium for an entire issue of a law review. Symposium, Empirical Measures of Judicial Performance, 32 FLA. ST. U. L. REV. 1001 (2005). Their research has also been discussed in the Chronicle of Higher Education. David Glenn, Jousting with Gavels, CHRON. HIGHER EDUC., May 23, 2003, at A16. 3. See Choi & Gulati, Choosing the Next, supra note 1, at 26 n.2. 4. See FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 1–2 (2007) (“[T]he circuit courts are much more important [than the Supreme Court] in setting and enforcing the law of the United States.”); Richard A. Posner, Judicial Behavior and Performance: An Economic Approach, 32 FLA. ST. U. L. REV. 1259, 1273 (2005) (“[T]he Supreme Court reviews only a minute percentage . of court of appeals decisions. Entire fields of law are left mainly to the courts of appeals to shape.”). 5. DAVID E. KLEIN, MAKING LAW IN THE UNITED STATES COURTS OF APPEALS 51 (2002). CROSS & LINDQUIST IN FINAL.DOC 5/5/2009 4:04:41 PM 1386 DUKE LAW JOURNAL [Vol. 58:1383 Part II introduces new criteria for evaluating circuit court judges, criteria that were used in connection with the appointment of Samuel Alito to the Supreme Court.6 We examine the success of circuit court judges on Supreme Court review, quantifying how often the Court reversed or affirmed their opinions and decisions. This provides a metric that yields different results from those provided by Professors Choi and Gulati. The judges with the highest quality score for outside circuit citations (the measure pioneered by Choi and Gulati) did not tend to have greater success when the Supreme Court reviewed their decisions. Because Supreme Court success seems related to judicial quality for circuit court judges, this suggests that the earlier quality measures require more scrutiny before their accuracy may be presumed. In Part III, we consider the different types of judges who serve on the circuit courts, using a variety of sources including our results on Supreme Court reversals, Choi and Gulati’s quality measure, and other available measures reflecting circuit judge prestige and quality. Prior research shows that judges’ role orientations differ. In Part III, therefore, we differentiate between judicial entrepreneurs and judicial minimalists and discuss how prior evaluations of
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